Beginning in the 1980s, many critics of the American criminal-justice system complained that the penalties for possession of crack cocaine, a drug most often used by poor blacks, were much harsher than the penalties for possession of powder cocaine, whose users were typically affluent whites. The implication was that the harsh anti-crack penalties, initially imposed in the eighties, were rooted at least partially in racism.
In August 2010, President Barack Obama, who had long shared this view, signed the Fair Sentencing Act which eliminated the five-year mandatory-minimum prison sentence for possession of crack cocaine. The new law also reduced the disparity (in terms of weight) between the respective amounts of powder cocaine and crack cocaine whose possession would trigger federal criminal penalties. The original powder-to-crack weight ratio was 100-to-1. The Fair Sentencing Act lowered the ratio to 18-to-1.
It should be understood, however, that the original, larger sentencing disparity was emphatically not due to racism in the justice system or in the legislature. The Congressional Record shows that in 1986, when the strict, federal anti-crack legislation was first being debated, the Congressional Black Caucus (CBC)—deeply concerned about the degree to which crack was decimating black communities across the United States—strongly supported the legislation and actually pressed for even harsher penalties. In fact, a few years earlier, CBC members had pushed President Reagan to create the Office of National Drug Control Policy.
It should further be noted that the vast majority of cocaine arrests in the U.S. are made at the state—not the federal—level, where sentencing disparities between cases involving crack and powder cocaine generally have never existed. Indeed, only a small minority of states have ever punished crack convictions more harshly than powder convictions, and the state-level differentials have always been much smaller than those on the federal level. Moreover, drug possession accounts for fewer than 2% of all the offenses that propel individuals into federal prisons. Those most likely to be incarcerated for drug convictions are not mere users, but traffickers who are largely career criminals with very long rap sheets.
It is also noteworthy that critics of the crack-vs.-powder penalty gap generally view the alleged injustice solely from the criminal’s perspective. That is, they ignore the fact that the harsher punishments for crack violations harm only a small subset of the black population—namely drug dealers and users—while benefiting the great mass of law-abiding people in black neighborhoods. Also commonly overlooked is the fact that black Americans constitute a smaller proportion of the people arrested for drug violations, than of those arrested for violent crimes. Thus, even if federal courts punished crack violations as lightly as powder cocaine infractions, the black prison population would scarcely shrink at all.
Remarkably, critics of the crack-vs.-powder penalty imbalance have been largely silent on the matter of federal methamphetamine-trafficking penalties—which, it could easily be argued, discriminate heavily against whites. Manhattan Institute Fellow Heather Mac Donald explains:
“The press almost never mentions the federal methamphetamine-trafficking penalties, which are identical to those for crack: five grams of meth net you a mandatory minimum five-year sentence. In 2006, the 5,391 sentenced federal meth defendants (nearly as many as the [5,619] crack defendants) were 54 percent white, 39 percent Hispanic, and 2 percent black. But no one calls the federal meth laws anti-Hispanic or anti-white.”
- Richard Cohen, “Class, Not Race,” New York Post (November 15, 1995), p. 25.
- Stephan Thernstrom and Abigail Thernstron, America in Black and White(New York: Simon and Schuster, 1997), p. 264.
- Ibid., pp. 278-279.